I write about how technology shapes society, and vice versa. In addition to blogging for Forbes, I cover tech policy for Ars Technica. I'm an adjunct scholar at the Cato Institute and have a master's degree in computer science from Princeton. I live in Philadelphia with my wife and our two cats. There's more information about me on my website, including a comprehensive disclosure statement. Please follow me on Twitter. You can email me at contact@timothyblee.com. (I don't really like Google+ but I need to put my profile here to show up in Google search results)

The Supreme Court Should Invalidate Software Patents

Last weekend I was thrilled to hear one of my favorite radio programs, This American Life, take up the issue of software patents. Computer programmers have been sounding the alarm about this problem for two decades, and it’s great to see mainstream media outlets finally start to give the issue the kind of attention it deserves. TAL devoted a full hour to the subject, focusing on Intellectual Ventures (which I’ve written about at length) and did an absolutely spectacular job.

This American Life‘s story-telling format makes it great for describing a problem, but it didn’t spend any time discussing potential solutions. So in this post I hope to fill in the gap by describing what I believe to be the best solution and how we ought to get there.

In my view, the solution is straightforward: software shouldn’t be eligible for patent protection. That might sound simplistic, but there are good reasons to think abolition of software patents is the right reform. Software is fundamentally different than other types of inventions. For starters, software is virtually alone in being eligible for both patent and copyright protection. This makes patent protection mostly superfluous. Second, writing software is an individual, expressive activity at least as much as it is an engineering discipline. We don’t expect novelists to hire patent lawyers, and computer programmers shouldn’t have to either. Finally, the “software industry” is radically more diffuse and diverse than the typical patent-eligible industry. Every business with more than a handful of employees has an IT department producing potentially patent-infringing software. No other category of patents has this characteristic.

Unfortunately, as Matt Yglesias points out, the patent reform legislation now working its way through Congress is woefully inadequate. I’d love to think that a wave of negative publicity for software patents would produce better legislation, but that’s not realistic. At this point, software patents simply benefit too many entrenched interests to expect Congress to enact serious reforms.

That means that the best hope for reform lies with the courts. The Supreme Court said three times that mathematical algorithms (a.k.a. “software”) are not eligible for patent protection. Unfortunately, the last of these decisions was three decades ago, and it was muddled enough to allow lower courts to gradually make software patents easier to get.

But in principle, those old Supreme Court decisions are still good law, even if lower courts have gotten in the habit of ignoring them. The Supreme Court just needs to say they really meant it. Indeed, many software patent critics hoped that last year’s Bilski v. Kappos case would be a first step in that direction. The case focused on “business method” patents, which was legalized in the same 1998 decision that decisively legalized software patents. But the Bilski case wound up being a 5-4 nail-biter, with a conservative majority striking down the particular business method patent in the case but refusing to rule out business method patents in general.

There is strong circumstantial evidence that Justice Scalia was (uncharacteristically) the swing vote, and that he is deeply ambivalent about business method and software patents. In his majority opinion, Justice Kennedy worried that invalidating business method patents would “create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals.” That would be a pretty depressing read for software patent opponents like me except that Scalia pointedly declined to join this part of the majority opinion. With only four votes, that part of the opinion isn’t binding precedent. And this isn’t the first hint that Scalia has doubts about software’s patentability.

Justice Stevens wrote an impassioned dissent calling for business method patents to be invalidated. Stevens retired shortly afterwards (see my tribute), but his dissent was signed by the three other liberals still on the court. We don’t know what Justice Kagan thinks, but it seems likely that she would have sided with her fellow liberals. Four liberals plus Justice Scalia would be a majority.

Of course, invalidating software patents at this point would be intensely controversial, because it would invalidate hundreds of thousands of patents—worth billions of dollars—at a single stroke. Courts always try to avoid upsetting apple carts. But in this case, invalidating those patents would be good policy in addition to good law. The growing value of software patents represents not the production of new wealth but an increasingly lucrative form of rent-seeking. As the number and value of software patents grows, the case for invalidating them gets stronger, not weaker.

But the Supreme Court won’t take such a dramatic step unless there is a broad consensus that patents are detrimental to software innovation. And this is why it’s so valuable to have mainstream programs like This American Life covering the issue. Justice Kennedy was obviously unaware that most computer programmers consider patents an impediment to their work. Only if this fact becomes common knowledge, in the way that everyone knows doctors hate malpractice lawsuits, will we have any hope of the Supreme Court—and specifically Justice Scalia—doing the right thing.

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A friend who also likes TAL linked me their story, and I came here to get a link to your android piece, only to find you had written this! How convenient. She enjoyed your post as well.

I think you’re right with the “software should be copyright only” and the analogy to novelists is good. We wouldn’t let Tolkien patent stories about hobbits and magic, (otherwise there would be a LOT of lawsuits) but we are fine with letting him claim rights on the actual words of the story.

The Supreme Court has effectively already invalidated the vast majority of software patents through its decisions on obviousness (KSR vs Teleflex being the most recent). The problem is that the Supreme Court decisions in these cases do not seem to have any effect beyond the single patent in question. Has anyone heard anything about the USPTO elevating its standards in response to this decision?I beieve patent reformers would have greater success if they put their efforts into demanding that the USPTO actually attempt to comply with Supreme Court decisions.

“Of course, invalidating software patents at this point would be intensely controversial, because it would invalidate hundreds of thousands of patents—worth billions of dollars—at a single stroke.”

You touch on it, but I would like to say it outright: Those patents are worth billions to the owners only because they will cost the infringers billions. There is no creation of wealth, whatsoever (rent seeking, as you point out).

They keep acting like they might get on the warpath, but Google really needs to step it up and not just sound bite about patent reform.

In a sense, Google’s response to this issue is a view into whether the executives at that company feel that innovation will drive their profits in the future. If they believe that Google will continue to be innovative, then of course they will combat software patents in more than a token fashion. If they start to see themselves as the next Microsoft, scraping by on interest and extortion, they might get very trollish. One can imagine many tech companies turning the corner in this sense, and perhaps that’s what will perpetuate software patents despite their obvious harms to the general public.

Should we end medical malpractice lawsuits because doctors don’t like them? Should we end software patents because big tech companies don’t like them? Perhaps you should consider the wronged patient, or the wronged inventor, and think about the world you’re advocating.

It mystifies me that independent/small company programmers are against software patents, though I agree with you that they usually are. If they’re actually building something of value, they’ll need patents to defend their hard work (e.g. Stac Electronics vs Microsoft) Arguing against patents is effectively them saying “nothing I create will ever be innovative” – a rather depressing position to take!

As for big companies, I think their positions are much more nuanced. They do seem universally to be in favor of their own patents, and against anyone else having patents.

If a vast majority of the relevant practitioners hold a similar opinion, yet that opinion mystifies you, that’s a strong signal that you just don’t understand the issue.

If you find the issue interesting, there is a lot of useful material at the link “sounding the alarm” in the main piece above. Instead of opining what developers are “effectively” saying, you can read there what they’re actually saying.

There are lots of examples of innovative startups (Google, for example) whose success had nothing to do with their patent portfolios. And there are even more innovative companies whose efforts have been hampered by others’ frivolous patent lawsuits (again, Google is a good example).